New Zealand is one of several countries currently negotiating the Trans-Pacific Partnership Agreement, a regional trade deal that the U.S. would like to see include a major chapter on intellectual property (Canada has been excluded from the talks). A new leak [PDF] of the New Zealand government’s position on the IP chapter is revealing on several levels, most notably for its criticism of the WIPO Internet treaties and the attempts to limit existing flexibilities on digital locks. According to the leaked document:While there may be good arguments for an early and more rapid development of international solutions, such approach bears the risk of being premature, lacking evidence at the national level that would suggest a desirable international norm.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty are examples of such approach. Both treaties attempt to deal with the challenges of enforcing intellectual property rights in the digital environment through legislating on technological measures and rights management. However, by providing stricter digital enforcement measures that are based on traditional concepts of copyright protection, the treaties have limited ability to recognise the reality of emerging new business models and new ways of consuming creative works via the internet.

Developments in the digital content market on the other hand indicate that businesses increasingly recognise that it is not in their interest to enforce copyright through DRM but to focus on monetising current internet user behaviour rather than trying to restrict it. This suggests that neither the WCT nor the WPPT reflect the complexity of creative investment in an online environment and their scope to act as a promoter of innovation remains questionable.

It is New Zealand’s view that TPP parties should only agree to ratify or accede to treaties that clearly support the longer term goals for the TPP region. Given the considerable level of uncertainty regarding the benefits of the WIPO Internet Treaties for the TPP region, New Zealand considers that TPP countries should retain their flexibility to legislate on technological measures.

There are several points worth emphasizing. First, NZ is clearly opposed to attempts to establish international norms on digital locks (ie. anti-circumvention legislation), arguing that countries should retain existing flexibilities on TPMs. Second, the NZ government recognizes the shortcomings of relying on digital lock rules, suggesting that the WIPO approach may actually undermine new business models. Third, it expresses doubt about the ability for digital lock rules to promote innovation. These are all positions that have been raised repeatedly within the Canadian context and serve to provide further evidence that support for the treaties is not nearly as widespread as its supporters claim.

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Change is hard .. donkey.Seems there is limited international consensus on the role or even the usefulness of digital locks, although I would think there needs to be some way to offer discounted services such as movie rentals or subscription music streaming. The implementation of TPM today though is often misapplied, overused and restrictive of fair user rights.

The biggest point I take away from the NZ position is the recognition that applying ‘analog’ copyright principles in a digital environment is not the solution that is needed today. It is going to take an intelligent concerted effort to realign the business and contractual structures to match the new realities of the market. For a time business can run a market, but eventually when there is a big enough disruptive force, they must adjust to the demands of the customers.

In this process there will be both winners and losers and most likely new players, although if the established systems can be flexible enough they may survive. I am not naive enough to believe that this is going to happen in a planned orderly manner, unfortunately, and even understandably, those who have the most to loose will oppose the changes the hardest.

Here’s my Christmas wishThat we decide to go after the uploader instead of the downloader and leave the privacy of Canadians where the Supreme Court put it. That we learn to appreciate wikileaks and privacy and to trust the truth. That greed be seen and stopped.

As Assange quoted Theodore Roosevelt: “â€œBehind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people…To destroy this invisible government, to befoul this unholy alliance between corrupt business and corrupt politics is the first task of statesmanship.â€